Justice Antonin Scalia
Death came for Chief Justice Roger B. Taney of the United States Supreme Court 150 years ago. Nominated as Chief Justice by his friend President Andrew Jackson and had sat on the court for 28 years. Although he had authored many important decisions, he is remembered today only for one: Dred Scott. 87 years old at the time of his death, Taney, a slave owner, had mirrored the tragic trajectory of the views of the South in regard to slavery in his own life. As a young man he regarded slavery as a blot on our national character, as he said in his opening argument in defense of a Methodist minister accused in 1819 of inciting slave insurrections. He emancipated his own slaves. However, by the time he authored the Dred Scott decision in 1857 he would write:
It is difficult at this day to realize the state of public opinion in regard to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted; but the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect.
Taney thought that the decision in Dred Scott would settle the slavery issue in regard to the territories and remove it from politics. Instead the decision inflamed public opinion North and South and manifestly helped bring on the Civil War. Taney lived to see his nation riven by Civil War and an administration in power dedicated to restoring the Union and abolishing slavery, and more than willing to ignore the paper edicts of Taney’s court when necessary. Old and sick, Taney remained on the bench, unwilling to have Lincoln name his successor, a living relic of a bygone era. The best epitaph for Taney I have ever read was that given by Justice Antonin Scalia in his magnificent dissent in Planned Parenthood v. Casey: Continue reading
In times of war the laws fall silent. That is from the Latin maxim Inter Arma Enim Silent Leges. A study of history reveals just how true that is, and Justice Scalia reminds us of that fact:
U.S. Supreme Court Justice Antonin Scalia told law students at the University of Hawaii law school Monday that the nation’s highest court was wrong to uphold the internment of Japanese-Americans during World War II but that he wouldn’t be surprised if the court issued a similar ruling during a future conflict.
Scalia was responding to a question about the court’s 1944 decision in Korematsu v. United States, which upheld the convictions of Gordon Hirabayashi and Fred Korematsu for violating an order to report to an internment camp.
“Well, of course, Korematsu was wrong. And I think we have repudiated in a later case. But you are kidding yourself if you think the same thing will not happen again,” Scalia told students and faculty during a lunchtime question-and-answer session.
“That’s what was going on — the panic about the war and the invasion of the Pacific and whatnot. That’s what happens. It was wrong, but I would not be surprised to see it happen again, in time of war. It’s no justification but it is the reality,” he said.
Go here to read the rest.
Internment camps were set up after Pearl Harbor during the invasion scare. Several thousand Italian-Americans and eleven thousand German Americans were interned during the war, but these were individuals who were picked up because investigations indicated that they could be a domestic threat. The west coast Japanese were simply scooped up with no individual investigations. J. Edgar Hoover, head of the FBI, opposed the internment of the Japanese, regarding it as completely unnecessary, but his views sadly were ignored. About 120,000 Japanese -Americans were interned during the war, the vast majority loyal Americans.
The Supreme Court upheld the constitutionality of the internment in the case of Korematsu v. United States. The vote was 6-3. Six out of the eight Supreme Court Justices appointed by FDR voted to affirm the constitutionality of the internment. The lone Republican on the court, Justice Owen Roberts, wrote a dissent which deserves to be remembered. It begins simply and directly:
This is not a case of keeping people off the streets at night as was Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, [323 U.S. 214, 226] nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated. Continue reading
Fred Biery, a Bill Clinton appointee, is a Federal District Judge down in Texas. In order to satisfy two village atheist parents of a student who contend that their 18 year old “child” will be irreparably damaged if any prayer escapes any lips during his high school commencement ceremony, Biery has banned all prayer at the high school commencement of the Medina Valley Independent School District on Saturday. This includes the Judge censoring the speech of the valedictorian of the graduating class, Angela Hildebrand, a Catholic, who wished to say a prayer in her speech.
The ruling was in response to a lawsuit filed by Christa and Danny Schultz. Their son is among those scheduled to participate in Saturday’s graduation ceremony. The judge declared that the Schultz family and their son would “suffer irreparable harm” if anyone prayed at the ceremony.
“Part of this goes to the very heart of the unraveling of moral values in this country,” Texas Attorney General Greg Abbott told Fox News Radio, saying the judge wanted to turn school administrators into “speech police.”
I’ve never seen such a restriction on speech issued by a court or the government,” Abbott told Fox News Radio. “It seems like a trampling of the First Amendment rather than protecting the First Amendment.”
Judge Biery’s ruling banned students and other speakers from using religious language in their speeches. Among the banned words or phrases are: “join in prayer,” “bow their heads,” “amen,” and “prayer.”
Should a student violate the order, school district officials could find themselves in legal trouble. Judge Biery ordered that his ruling be “enforced by incarceration or other sanctions for contempt of Court if not obeyed by District official (sic) and their agents.”
The Texas attorney general called the ruling unconstitutional and a blatant attack from those who do not believe in God — “attempts by atheists and agnostics to use courts to eliminate from the public landscape any and all references to God whatsoever.”
“This is the challenge we are dealing with here,” he said. “(It’s) an ongoing attempt to purge God from the public setting while at the same time demanding from the courts an increased yielding to all things atheist and agnostic.”